Madhya Pradesh High Court
Dr (Smt) Amita Gupta vs The State Of Madhya Pradesh on 10 November, 2021
Author: Sujoy Paul
1 W.A. No.743/2021
The High Court of Madhya Pradesh Bench at Indore
Case Number W.A. No. 743/2021
Parties Name Dr. (Smt.) Amita Gupta
Vs.
State of M.P. & Anr.
Date of Order 10/11/21
Bench Division Bench:
Justice Sujoy Paul
Justice Pranay Verma
Judgment delivered Justice Sujoy Paul
by
Whether approved YES
for reporting
Name of counsel for Shri L.C. Patne, learned counsel for the
parties appellant.
Shri Pushyamitra Bhargav, learned Additional
Advocate General for the respondents / State.
Law laid down *Section 10A & 11 of the Indian Medical
Council Act, 1956 and Medical Council of
India, Minimum Qualifications for Teachers
in Medical Institutions Regulations, 1998 -
Scope - The provision relating to
"establishment" of medical college and
recognition of a course" are two distinct and
different provisions which are dealt with by
different statutory provisions and method.
*Section 11(2) r/w Notification and
corrigendum - A conjoint reading of Section
11(2), original Notification of 1.4.2019 and
corrigendum leaves no room for any doubt that
the MCI has given recognition to the MD
course of MGM College w.e.f. 2017.
*Interpretation - Notification/Corrigendum
- The appellant completed MD course in 2017.
By a Notification dated 01/04/2019, initially
MCI recognised the MD courses of said
college from 2019. However, by way of
amendment/corrigendum, the said course was
recognised from 2017. The contention of State
is repelled that recognition has to be read from
2019. This argument, if accepted, will lead to
ambiguity and absurdity. There shall be no
2 W.A. No.743/2021
explanation between 2017 and 2019 despite
the fact that MD course of 2017 was
recognised. A proper interpretation which
eschews the ambiguity and absurdity must be
accepted.
*Interpretation- This is golden rule of
interpretation that hardship, inconvenience,
injustice, absurdity and anomaly to be avoided.
Even if grammatical construction leads to any
absurdity or inconsistency, it may be departed
from, so as to avoid that absurdity and
inconsistency.
*Principle of estoppel/waiver - The appellant
was duly selected and was found to be eligible.
Appointment was declined. During the
pendency of writ appeal, two more
advertisements to fill up same posts were
issued, but none could be selected. Since
appellant assailed the inaction during the
lifetime of select panel, neither principle of
estoppel nor waiver can deprive her from the
fruits of litigation.
Significant 15 to 30
paragraph numbers
ORDER
th
(10 November, 2021)
Sujoy Paul, J.:
This intra-court appeal filed under Section 2(1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal)
Adhiniyam, 2005 assails the order of Single Bench dated 29.04.2019
(Annexure-A/1) passed in W.P. No.29018/2018 as well as order dated
09.08.2021 (Annexure-P/2) passed by in R.P. No.945/2019.
02. The admitted facts between the parties are that the appellant
completed her M.B.B.S. Course from Government Gandhi Medical
College, Bhopal and said qualification was duly registered with the
Medical Council of India (MCI) on 13.08.2012. The appellant got
admission in MD (Bio-chemistry) in MGM Medical College, Indore,
which is a Government institution on 05.08.2014. Indisputably, MGM
Medical College is a MCI recognized medical college. The appellant
completed her MD (Bio-chemistry) Course on 31.08.2017. Pursuant to
an advertisement issued by the respondents inviting candidature for
the post of Assistant Professor on 13.04.2018, the appellant submitted
her candidature. The appellant was duly selected and was found to be
meritorious. Despite selection, the appellant was not served with any
appointment order. Aggrieved with the said inaction of the
respondents, W.P. No.29018/2018 was filed seeking writ of mandamus
for issuance of appointment order. The said writ petition came to be
dismissed on 29.04.2019.
03. Shri L.C. Patne, learned counsel for the appellant submits that
respondents admitted that appellant is eligible, meritorious and
selected for the post in question, but could not be appointed for want
of 'additional registration' by MCI. The Writ Court by assigning
reason in para - 13 and 14 of the order impugned opined that
appellant could not furnish the 'additional registration' and respondent
No.2 did not commit any illegality in demanding the additional
registration of MD. R.P. No.945/2019 was filed on the strength of the
document dated 29.04.2019 and documents dated 01.04.2019 ad
02.07.2019 (page-149 and 150). On the strength of these documents,
the appellant sought review by contending that a cumulative reading
of these documents shows that Letter of Permission was received by
the Government MGM College way back on 31.03.2013. Apart from
this, corrigendum dated 02.07.2019 makes it clear that first schedule
of previous notification dated 01.04.2019 stood amended whereby
qualification of MD acquired by appellant in the year 2017 is also
duly recognized under Section 11 of the MCI Act.
04. The review petition was dismissed by the learned Single
Judge by holding that additional registration certificate is received on
25.06.2019, and therefore, on the last date of submission of
candidature (cut off date) i.e. 20.04.2018, the appellant, admittedly did
not have essential certificate to show that her MD course is recognized
by the MCI.
05. Criticizing both the above orders, Shri Patne, learned counsel
for the appellant submits that firstly, MGM Medical College was not
only a college which imparted education to the appellant in MD
course, it was a recruiting agency / unit for which appellant submitted
her candidature and was duly selected. After having received
education in MD subject from a Government institution, it was no
more open to said institution to say that the qualification so obtained
from that college is not valid in the teeth of MCI provisions.
06. Secondly, Shri Patne submits that a careful reading of
Schedule-1 appended to Regulation of 1998 and reproduced in para -
7 of the order passed in W.P. No.29018/2018, the expression used is
'recognized medical college'. It is not in dispute that MGM College is
a 'recognized' medical college. Apart from this, the notification dated
02.07.2019 leaves no room for any doubt that it is retrospective in
nature and grants recognition to the degree of MD obtained by the
appellant w.e.f. 2017.
07. To bolster this submission, reliance is placed on the language
employed in Section 11(2) of the MCI Act coupled with the
'corrigendum' where the words used are 'when granted'. It is urged that
a conjoint reading of enabling provision namely Section 11(2) r/w
notification dated 01.04.2019 and corrigendum dated 02.04.2019
makes it clear like cloudless sky that appellant got recognized
qualification in the year 2017. The select list was published on
25.04.2018 and appellant became qualified in the year 2017 itself.
Thus, by no stretch of imagination, appellant's qualification can be
treated to be valid from 2019 only, the date when notification dated
01.04.2019 was issued. Any other interpretation, Shri Patne submits
will lead to absurdity and there will be no explanation about said
qualification between 2017 (when appellant acquired the
qualification) and 2019 (when first notification dated 01.04.2019) was
issued.
08. Lastly, it is submitted that writ petition was filed on
14.12.2018, before expiry of the life of select list.
09. Shri Pushyamitra Bhargav, learned AAG opposed the said
prayer and supported the impugned orders passed by learned Single
Judge.
10. By taking this Court to Section 10A and 11 of the MCI Act,
1956, learned AAG submits that the permission to 'establish' a college
and grant of 'recognition' to a particular course are two different facets
dealt with by two different provisions of the MCI Act. By placing
heavy reliance on (2012) 8 SCC Page 80, MCI vs. Rama Medical
College Hospital and Research Center, Kanpur, Shri Bhargav urged
that this judgment, in no uncertain terms, makes it clear that MCI Act
gives authority to MCI to take all steps to ensure that a medical
institution either at the time of establishment or later at the time of
applying for increase in the number of seats has the capacity and
necessary infrastructure, not only to run the college, but also to sustain
the increase in the number of seats applied for. The recognition can be
assumed only when necessary formalities as per Section 11 and
Section 26 of MCI Act are fulfilled. By placing reliance on the
Notification dated 20.07.2019 whereby medical qualification was
recognised from 2017, Shri Bhargava submits that a careful reading of
this Notification and the corrigendum shows that it is an amendment
to the previous Notification dated 01.04.2019. Thus, even assuming
that this corrigendum relates back to the date of original Notification,
it will relate back to 1st of April, 2019 and not behind or beyond/prior
to that. In this view of the matter, indisputably, on the cut off date, the
appellant did not have the recognized MD qualification and, therefore,
no fault can be found in the inaction of respondents in not appointing
the appellant for want of additional registration.
11. Minimum Qualifications for Teachers in Medical Institutions
Regulations, 1998 (Regulations) are also relied upon to contend that
the Assistant Professor can be appointed strictly inconsonance with
this statutory provision. The advertisement was issued inconnosance
with this statutory provision. The appellant did not have the aforesaid
qualification.
12. Lastly, Shri Bhargava, learned AAG submits that after the
decision of the writ petition, two more advertisements were issued by
the respondents to fill up the post in question, but none could fetch
any result. He admitted that the post in question is still lying vacant.
However, it is argued that since the appellant did not challenge the
subsequent advertisements/selections, no relief is due to the appellant
and life of select panel is expired.
13. The parties confined their arguments to the extent indicated
above.
14. We have heard the parties at length and perused the record.
15. The para 1 of the reply filed in W.P. reads as under:-
(1) That, petitioner has preferred present petition
mainly on the ground that she was selected for appointment
as assistant professor (Biochemistry) but till date she has not
given the joining on the said post.
"In reply to aforesaid contention of the petitioner the
answering respondent humbly submits that though the
petitioner was selected candidate but till date she has not
submitted the Additional Registration of MD as the time
of selection she has produced the receipt of application for
additional registration and therefore selection committee
considered her candidature and selected the petitioner under
condition to produce the same. Petitioner is required to
submit the additional Registration of MD for being
appointed as Assistant Professor."
(Emphasis Supplied)
16. Another relevant portion of the said reply reads as under:-
"Petitioner is full filling the basic eligibility norms
and therefore, selection committee after considering the
merit of the petitioner selected her. Petitioner assured at the
fine of selection that she will produce the additional
registration of MD immediately but till this date she has not
produced the same."
(Emphasis Supplied)
17. A plain reading of the reply makes it clear that the respondents
categorically admitted that appellant had fulfilled the basic eligibility
norms and was found to be meritorious and was accordingly selected.
The singular reason for non appointment was that petitioner could not
submit additional registration of M.D. It was explained in detail by
Shri Bhargava, learned AAG that the 'admission' and 'recognition' are
two different facets. As per his stand, the appellant got registration
only on 2nd of July, 2019 which cannot be treated to be retrospective
w.e.f. from a date which is prior to the cut off date.
18. The order passed in review petition by learned Single Judge
shows that learned Single Judge has decided the matter in the same
line and opined that the additional registration certificate is received
on 25/06/2019 i.e. after the cut off date. Thus, the subsequent
Notification/corrigendum did not impress the learned Single Judge.
19. A careful reading of Section 10A and 11 of the MCI Act leaves
no room for any doubt that the permission to 'establish' a medical
college and grant of 'recognition' are two different aspects governed
by two different statutory provisions. The Supreme Court in great
detail considered this aspect in the case of Medical Council of India
(Supra). However, in our opinion, this aspect has no significance in
the light of the Notification dated 01/04/2019 and its 'corrigendum'
dated 02/07/2019. Before dealing with the same, it is apposite to quote
Section 11(2) of MCI Act which reads as under:-
"(2) Any University or medical institution in India
which grants a medical qualification not included in the First
Schedule may apply to the Central Government, to have such
qualification recognized, and the Central Government, after
consulting the Council, may, by notification in the Official
Gazette, amend the First Schedule so as to include such
qualification therein, and any such notification may also direct
that an entry shall be made in the last column of the First
Schedule against such medical qualification declaring that it
shall be a recognized medical qualification only when
granted after a specified date."
(Emphasis Supplied)
20. The Notification dated 01/04/2019 reads as under:-
Government of India
Ministry of Health and Family Welfare
(Department of Health and Family Welfare)
Nirman Bhawan, New Delhi
Dated the 01 April, 2019
NOTIFICATION
S.O..... In exercise of the power conferred by sub-section (2) of the section 11 of
the Indian Medical Council Act, 1956 (102 of 1956), the Central Government, after
consulting the Medical council of India,, hereby makes the following further amendments
in the First Schedule to the said Act, namely:-
In the said Schedule -
a) against ' Madhya Pradesh Medical Sciences University, Jabalpur" under the
heading 'Recognized Medical Qualification' [hereinafter referred to as column (2)], after
the last entry and entry relating thereto under the heading 'Abbreviation for Registration'
[hereinafter referred to as column (3)], the following shall be inserted, namely:-
Doctor of Medicine (Bio-Chemistry) MD (Bio-Chemistry)
(This shall be a recognized medical
qualification when granted by Madhya
Pradesh Medical Sciences University,
Jabalpur in respect of students being trained
at M G M Medical College, Indore on or
after 2018)
Note:
1. The recognition so granted to a post graduate Course shall be for a maximum
period of 5 years, upon which it shall have to be renewed.
2. The procedure for "Renewal' of recognition shall be same as applicable for the
award of recognition.
3. Failure to seek timely renewal of recognition as required shall invariably result
in stoppage of admissions to the concerned postgraduate Course.
U/12012/13/2019-ME-I [3196841]
(P.K. Bandhyopadhyay)
Under Secretary to the Govt. of India
21. The Corrigendum dated 02/07/2019 reads as under:-
Government of India
Ministry of Health and Family Welfare
(Department of Health and Family Welfare)
Nirman Bhawan, New Delhi
Dated the 02 July, 2019
CORRIGENDUM
In continuation to this Department's Notification No.U/12012/13/2019-ME-I
[3196841] dated 01.04.2019, and in exercise of the powers conferred by sub-section (2)
of the section 11 of the Indian Medical Council Act, 1956 (102 of 1956), the Central
Government, after consulting the Medical Council of India, hereby makes the following
further amendments in the First Schedule to the said Act, namely:-
In the said Schedule -
a) against "Madhya Pradesh Medical Science University, Jabalpur" under the
heading ' Abbreviation for Registration' (column 3), the Doctor of Medicine (Bio-
Chemistry) qualification shall be a recognised medical qualification when granted
by Madhya Pradesh Medical Sciences University, Jabalpur in respect of students
being trained at MGM Medical College, Indore on or after 2017 instead of 2018".
U/12012/13/2019-ME-I [3196841]
(P.K. Bandhyopadhyay)
Under Secretary to the Govt. of India
(Emphasis Supplied)
22. The law makers, in our opinion, were conscious about the fact
that establishment of college and imparting education is a time taking
process. The recognition may come at a later point of time. Thus, a
clear expression was used in Sub-Section 2 "that it shall be a
recognised medical qualification only when granted after a specified
time. The highlighted portion of the Notification dated 01/04/2019 and
2nd July, 2019 also makes it clear that recognised medical qualification
shall be treated from the date 'when granted'. By corrigendum, the
recognised Medical Qualification was granted for petitioner from
2017, the batch in which appellant has passed the MD course. We find
substance in the argument of Shri Patne, learned counsel that any
other interpretation will lead to absurdity. In that case, there will be a
vacuum between 2017, the year when appellant admittedly passed the
MD Course and 2019, when original Notification was issued
recognising the MD qualification.
23. This is golden rule of interpretation that hardship,
inconvenience, injustice, absurdity and anomaly to be avoided. Even
if grammatical construction leads to any absurdity or inconsistency, it
may be departed from, so as to avoid that absurdity and inconsistency
(See: (1996) 2 ALL ER 23, p.32; Mohamadhusen Abdulrahim
Kalota Shaikh v. Union of India, (2009) 2 SCC 1 para 101)
24. As approved by Venkatarama Aiyar, J., "Where the language of
a statute, in its ordinary meaning and grammatical construction, leads
to a manifest contradiction of the apparent purpose of the enactment,
or to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it which
modifies the meaning of the words, and even the structure of the
sentence. (See: (1998) 3 SCC 23; Molar Mal v. Kay Iron Works (P.)
Ltd., AIR 2000 SC 1261, P. 1266 Padmasundara Rao v. State of
T.N.).
25. Thus, a proper and permissible reading of the notification dt.
01.04.2019 and corrigendum leads to the conclusion that petitioner's
qualification is treated as 'recognised' by MCI from 2017. In that case,
petitioner is having recognised qualification much before the cut off
date.
26. It cannot be forgotten that the delay in issuing the Notification
and corrigendum etc. is attributable to the MCI/respondents. The
appellant cannot be made to suffer for the same.
27. So far argument of Shri Bhargava, learned AAG that life of
select list was over during the pendency of writ petition is concerned,
coupled with the argument that appellant has not challenged the
subsequent selection is concerned, suffice it to say that both the
arguments deserve to be rejected in the light of settled legal position.
In the case of Purushottam vs. Chairman, M.SEB, (1999)6 SCC 49,
the Apex Court opined as under:-
"4. .......The right of the appellant to be appointed
against the post to which he has been selected cannot be
taken away on the pretext that the said panel has in the
meantime expired and the post has already been filled up
by somebody else. Usurpation of the post by somebody
else is not on account of any defect on the part of the
appellant, but on the erroneous decision of the employer
himself. In that view of the matter, the appellant's right to
be appointed to the post has been illegally taken away by
the employer."
(Emphasis Supplied)
28. Similarly, in State of U.P. vs. Ramswarup Saroj, (2000) 3 SCC
699, the Supreme Court held as under:-
"10. ....... Merely because a period of one year has
elapsed during the pendency of litigation, we cannot
decline to grant the relief to which the respondent has
been found entitled by the High Court."
(Emphasis Supplied)
29. This Court in Jakir Khan vs. State of MP (2017) V.65 ILR MP
followed the ratio decidendi of the said cases. The judgment of Jakir
Khan (supra) was unsuccessfully challenged by the State in WA No.
882/2016.
30. Thus, in our view, neither principle of estoppel nor waiver can
be a reason to deprive the appellant to get the fruits of the litigation.
The appellant promptly challenged the inaction of respondents during
the lifetime of panel and, therefore, litigation can not be rejected on
that ground.
31. In view of foregoing analysis, in our opinion, the learned Single
Judge has gone wrong in dismissing WP No.29018/2018 and RP
No.945/2019. Resultantly, both the said orders are set aside. The
respondents are directed to proceed with the selection and issue the
appointment order of the petitioner subject to other formalities. It is
made clear that the aspect of recognised qualification of M.D. cannot
be an impediment for the petitioner to get the appointment on the post
of Assistant Professor. The entire exercise of consideration be
completed within 60 days from the date of production of copy of this
order. Writ Appeal is allowed.
(Sujoy Paul) (Pranay Verma)
Judge Judge
soumya Digitally signed by
SOUMYA RANJAN
DALAI
Date: 2021.11.11
13:38:25 +05'30'
